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EXHIBIT 3.2
BYLAWS
OF
HOUSEHOLD DIRECT.com, INC.
ADOPTED AND EFFECTIVE
JUNE 22, 1999
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TABLE OF CONTENTS
ARTICLE I ............................................................................................... 1
OFFICES.................................................................................................. 1
SECTION 1.1 REGISTERED OFFICE................................................................. 1
SECTION 1.2 OTHER OFFICES..................................................................... 1
ARTICLE II............................................................................................... 1
MEETINGS OF STOCKHOLDERS................................................................................. 1
SECTION 2.1 PLACE OF MEETINGS................................................................. 1
SECTION 2.2 ANNUAL MEETING.................................................................... 1
SECTION 2.3 SPECIAL MEETINGS.................................................................. 1
SECTION 2.4 QUORUM........................................................................... 1
SECTION 2.5 VOTING........................................................................... 2
SECTION 2.6 LIST OF STOCKHOLDERS ENTITLED TO VOTE............................................ 2
SECTION 2.7 STOCK LEDGER..................................................................... 2
SECTION 2.8 RECORD DATE...................................................................... 2
SECTION 2.9 CONDUCT OF MEETINGS BY PRESIDING PERSON.......................................... 3
SECTION 2.10 NOMINATION OF DIRECTORS.......................................................... 4
SECTION 2.11 STOCKHOLDER PROPOSALS REGARDING AMENDMENTS TO CERTIFICATE OF INCORPORATION....... 5
SECTION 2.12 STOCKHOLDER ACTION BY WRITTEN CONSENT............................................ 6
ARTICLE III.............................................................................................. 6
DIRECTORS............................................................................................... 6
SECTION 3.1 NUMBER AND ELECTION OF DIRECTORS................................................. 6
SECTION 3.2 VACANCIES........................................................................ 6
SECTION 3.3 DUTIES AND POWERS................................................................ 6
SECTION 3.4 MEETINGS.......................................................................... 6
SECTION 3.5 QUORUM........................................................................... 7
SECTION 3.6 ACTION OF BOARD.................................................................. 7
SECTION 3.7 MEETINGS BY MEANS OF CONFERENCE TELEPHONE........................................ 7
SECTION 3.8 COMPENSATION..................................................................... 7
SECTION 3.9 INTERESTED DIRECTORS............................................................. 7
SECTION 3.10 REMOVAL.......................................................................... 8
ARTICLE IV.............................................................................................. 9
COMMITTEES.............................................................................................. 9
SECTION 4.1 COMMITTEES....................................................................... 9
SECTION 4.2 COMMITTEE RULES................................................................... 10
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ARTICLE V................................................................................................ 10
OFFICERS................................................................................................. 10
SECTION 5.1 GENERAL........................................................................... 10
SECTION 5.2 ELECTION.......................................................................... 10
SECTION 5.3 CHAIRMAN OF THE BOARD OF DIRECTORS................................................ 10
SECTION 5.4 PRESIDENT......................................................................... 11
SECTION 5.5 VICE PRESIDENTS................................................................... 11
SECTION 5.6 ABSENCE OF OFFICERS............................................................... 11
SECTION 5.7 SECRETARY......................................................................... 11
SECTION 5.8 TREASURER......................................................................... 12
SECTION 5.9 CONTROLLER........................................................................ 12
SECTION 5.10 ASSISTANT SECRETARIES............................................................. 12
SECTION 5.11 ASSISTANT TREASURERS.............................................................. 13
SECTION 5.12 OTHER OFFICERS.................................................................... 13
ARTICLE VI............................................................................................... 13
STOCK.................................................................................................... 13
SECTION 6.1 CERTIFICATES EVIDENCING SHARES.................................................... 13
SECTION 6.2 TRANSFER AGENT.................................................................... 13
SECTION 6.3 SIGNATURES........................................................................ 13
SECTION 6.4 LOST CERTIFICATES................................................................. 13
SECTION 6.5 TRANSFERS......................................................................... 14
ARTICLE VII.............................................................................................. 14
NOTICES.................................................................................................. 14
SECTION 7.1 NOTICES........................................................................... 14
SECTION 7.2 WAIVERS OF NOTICE................................................................. 14
ARTICLE VIII............................................................................................. 14
INDEMNIFICATION.......................................................................................... 14
SECTION 8.1 GENERAL........................................................................... 14
SECTION 8.2 EXPENSES RELATED TO PROCEEDINGS................................................... 15
SECTION 8.3 ADVANCEMENT OF EXPENSES........................................................... 15
SECTION 8.4 REQUEST FOR INDEMNIFICATION....................................................... 15
SECTION 8.5 DETERMINING ENTITLEMENT OF INDEMNIFICATION IF NO CHANGE OF
CONTROL........................................................................... 15
SECTION 8.6 DETERMINING ENTITLEMENT OF INDEMNIFICATION IF NO CHANGE OF
CONTROL........................................................................... 15
SECTION 8.7 PROCEDURES OF INDEPENDENT COUNSEL................................................. 16
SECTION 8.8 EXPENSES OF INDEPENDENT COUNSEL................................................... 16
SECTION 8.9 TRIAL DE NOVO..................................................................... 17
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SECTION 8.10 NON-EXCLUSIVITY.................................................................. 17
SECTION 8.11 INSURANCE AND SUBROGATION........................................................ 18
SECTION 8.12 SEVERABILITY..................................................................... 18
SECTION 8.13 CERTAIN PERSONS NOT ENTITLED TO INDEMNIFICATION.................................. 18
SECTION 8.14 DEFINITIONS...................................................................... 18
SECTION 8.15 NOTICES.......................................................................... 20
SECTION 8.16 CONTRACTUAL RIGHTS............................................................... 20
ARTICLE IX............................................................................................... 20
AMENDMENTS............................................................................................... 20
SECTION 9.1 VOTE REQUIREMENTS................................................................. 20
SECTION 9.2 STOCKHOLDER PROPOSALS............................................................. 20
ARTICLE X................................................................................................ 21
GENERAL PROVISIONS....................................................................................... 21
SECTION 10.1 DIVIDENDS......................................................................... 21
SECTION 10.2 DISBURSEMENTS..................................................................... 21
SECTION 10.3 FISCAL YEAR....................................................................... 22
SECTION 10.4 CORPORATE SEAL.................................................................... 22
SECTION 10.5 DEFINITION OF BENEFICIAL OWNER.................................................... 22
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ARTICLE I
OFFICES
Section 1.1 Registered Office. The registered office of HouseHold
Direct.com, Inc. (the "Corporation") in the State of Delaware, is 201 N. Dupont
Parkway, New Castle, New Castle County, Delaware 19720. The registered agent at
such address is Delaware Intercorp, Inc.
Section 1.2 Other Offices. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1 Place of Meetings. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time and
place, either within or without the State of Delaware, as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2.2 Annual Meeting. The annual meeting of stockholders shall be
held on such date and at such time as shall be designated from time to time by
the Board of Directors and stated in the notice of meeting at which meeting the
stockholders shall elect a Board of Directors, and transact such other business
as may properly be brought before the meeting. Written notice of the annual
meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote of such meeting not less than ten nor more than 60
days before the date of the meeting.
Section 2.3 Special Meetings. Unless otherwise prescribed by law or by
the Certificate of Incorporation of the Corporation, as amended from time to
time to time (the "Certificate of Incorporation"), special meetings of
stockholders, for any purpose or purposes, may be called by the Chairman of the
Board, if any, the President or the Secretary oat the instruction of a majority
of the Board of Directors or on the written request of holders of at least 50%
of the total number of shares of capital stock of the Corporation issued and
outstanding and entitled to vote. Such request shall state the specific purpose
of purposes of the proposed meeting. Written notice of the special meeting
stating the place, date and hour of the meeting and the purpose or purposes for
which the meeting is called shall be given to each stockholder entitled to vote
at such meeting not less than ten nor more than 60 days before the date of such
meeting.
Section 2.4 Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote, present in person or represented by
proxy, shall constitute a quorum at all meetings of
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stockholders for the transaction of business. If, however, such quorum shall not
be present or represented at any meeting of stockholders, the stockholders
entitled to vote, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed. If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder entitled to vote at the
meeting.
Section 2.5 Voting. Unless otherwise required by law, the Certificate
of Incorporation or these Bylaws, any question brought before any meeting of
stockholders shall be decided by the vote of the holders of a majority of the
stock represented and entitled to vote. Each stockholder represented at a
meeting of stockholders shall be entitled to cast one vote for each share
standing in his name on the books of the Corporation. Votes may be cast in
person or by proxy but no proxy shall be voted or acted on or after three years
from its date, unless such proxy provides for a longer period. The Board of
Directors, in its discretion, or the officer of the Corporation presiding at a
meeting of stockholders, in his discretion, may require that any votes cast at
such meeting shall be cast by written ballot.
Section 2.6 List of Stockholders Entitled to Vote. The officer of the
Corporation who has charged of the stock ledger of the Corporation shall prepare
and make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof and may be inspected by any stockholder of
the Corporation who is present.
Section 2.7 Stock Ledger. The stock ledger of the Corporation shall be
the only evidence as to who are the stockholders entitled (i) to examine the
stock ledger, the list required by Section 2.6 of this Article II or the books
of the Corporation and (ii) to vote in person or by proxy at any meeting of
stockholders.
Section 2.8 Record Date. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date, which in the
case of a meeting, shall not be less than the minimum nor more than the maximum
number of days prior to the scheduled date
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of such meeting permitted under the laws of the State of Delaware and which, in
the case of any other action, shall be not less than the minimum nor more than
the maximum number of days prior to any such action permitted by the laws of the
state of Delaware. If no such record date is fixed by the Board of Directors,
the record date shall be that prescribed by the laws of the State of Delaware. A
determination of stockholders of record entitled to notice of or to vote at a
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 2.9 Conduct of Meetings by Presiding Person. All determinations
of the presiding person at each meeting of stockholders shall be conclusive
unless a matter is determined otherwise upon motion duly adopted by the
affirmative vote of the holders of at least 80% of the voting power of the
shares of capital stock of the Corporation entitled to vote in the election of
directors held by stockholders present in person or represented by proxy at such
meeting. Accordingly, in any meeting of stockholders or part thereof, the
presiding person shall have the sole power to determine appropriate rules or to
dispense with theretofore prevailing rules. Without limited the foregoing, the
following rules shall apply:
(a) The presiding person may ask or require that anyone not a
bonafide shareholder or duly authorized proxy leave the
meeting.
(b) A resolution or motion shall be considered for vote only if
proposed by a stockholder or duly authorized proxy, and
seconded by an individual, who is a stockholder or a duly
authorized proxy, other than the individual who proposed the
resolution or motion, subject to compliance with any other
requirements concerning such proposed resolution or motion
contained in these Bylaws. The presiding person may propose
any motion for vote. The order of business at all meetings of
stockholders shall be determined by the presiding person.
(c) The presiding person may impose any reasonable limits with
respect to participation in the meeting by stockholders,
including, but not limited to, limits on the amount of time at
the meeting taken up by the remarks or questions of any
stockholder, limits on the numbers of questions per
stockholder, and limits as to the subject matter and timing of
questions and remarks by stockholders.
(d) Before any meeting of stockholders, the Board of Directors may
appoint any person other than nominees for office to act as
inspectors of election at the meeting or its adjournment. If
no inspectors of election are so appointed, the presiding
person may, and on the request of any stockholder or
stockholder's proxy shall, appoint an inspector or inspectors
of election at the meeting of stockholders. If any person
appointed as inspector fails to appear or fails or refuses to
act, the presiding person may, and upon the request of any
stockholder or a duly authorized proxy shall, appoint a person
to fill such vacancy.
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The duties of the inspectors of election shall be as follows:
(i) to determine the number of shares outstanding and the voting
power of each, the shares represented at the meeting, the
existence of a quorum, and the authenticity, validity and
effect of proxies;
(ii) to receive notes or ballots;
(iii) to hear and determine all challenges and questions in any way
arising in connection with the right to vote;
(iv) to count and tabulate all votes;
(v) to report to the Board of Directors the results based on the
information assembled by the inspectors; and
(vi) to do any other acts that may be property conduct the election
or vote with fairness to all stockholders.
Notwithstanding the foregoing, the final certification of the results of any
election or other matter acted upon at a meeting of stockholders shall be made
by the Board of Directors.
Section 2.10 Nomination of Directors. Nominations for the election of
directors may be made by the Board of Directors or by any stockholder (a
"Nominator") entitled to vote in the election of directors. Such nominations,
other than those made by the Board of Directors shall be made in writing
pursuant to timely notice delivered to or mailed and received by the Secretary
of the Corporation as set forth in this Section 2.10. To be timely in connection
with an annual meeting of stockholders, a Nominator's notice, setting forth the
name and address of the person to be nominated, shall be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
90 days nor more than 180 days prior to the date on which the immediately
preceding year's annual meeting of stockholders was held. To be timely in
connection with any election of a director at a special meeting of the
stockholders, a Nominator's notice, setting forth the name of the person to be
nominated, shall be delivered to or mailed and received at the principal
executive office of the Corporation not less than 40 days nor more than 60 days
prior to the date of such meeting; provided, however, that in the event that
less than 50 days' notice or prior public disclosure of the date of the special
meeting of the stockholders is given or made to the stockholders, the
Nominator's notice to be timely must be so received not later than the close of
business on the seventh day following the day on which such notice of date of
the meeting was mailed or such public disclosure was made. At such time, the
Nominator shall also submit written evidence, reasonably satisfactory to the
Secretary of the Corporation, that the Nominator is a stockholder of the
Corporation and shall identify in writing (i) the name and address of the
Nominator, (ii) the number of shares of each class of capital stock of the
Corporation owned beneficially by the Nominator, (iii) the name and address of
each of the
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persons with whom the Nominator is acting in concert and (iv) the number of
shares of capital stock beneficially owned by each such person with whom the
Nominator is acting in concert pursuant to which the nomination or nominations
are to be made. At such time, the Nominator shall also submit in writing (i) the
information with respect to each such proposed nominee that would be required to
be provided in a proxy statement prepared in accordance with Regulation 14A
under the Securities Exchange Act of 1934, as amended, and (ii) a notarized
affidavit executed by each such proposed nominee to the effect that, if elected
as a member of the Board of Directors, he will serve and that he is eligible for
election as a member of the Board of Directors. Within 30 days (or such shorter
time period that may exist prior to the date of the meeting) after the Nominator
has submitted the aforesaid items to the Secretary of the Corporation, the
Secretary of the Corporation shall determine whether the evidence of the
Nominator's status as a stockholder submitted by the Nominator is reasonably
satisfactory and shall notify the Nominator in writing of his determination. The
failure of the Secretary of the Corporation to fund such evidence reasonably
satisfactory, or the failure of the Nominator to submit the requisite
information in the form or within the time indicated, shall make such nomination
ineffective for the election at the meeting at which such person is proposed to
be nominated. The presiding person at each meeting of stockholders shall, if the
facts warrant, determine and declare to the meeting that a nomination was not
made in accordance with the procedures prescribed by these Bylaws, and if he
should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
Section 2.11 Stockholder Proposals Regarding Amendments to Certificate
of Incorporation. No proposal by a stockholder to amend or supplement the
Certificate of Incorporation shall be voted upon at a meeting of stockholders
unless, at least not less than 90 nor more than 180 days before such meeting of
stockholders, such stockholder shall have delivered in writing to the Secretary
of the Corporation (i) notice of such proposal and the text of such amendment or
supplement, (ii) evidence, reasonably satisfactory to the Secretary of the
Corporation, of such stockholder's status as such and of the number of shares of
each class of the capital stock of the Corporation beneficially owned by such
stockholder, (iii) a list of the names of other beneficial owners of shares of
the capital stock of the Corporation, if any, with whom such stockholder is
acting in concert, and of the number of shares of each class of the capital
stock of the Corporation beneficially owned by each such beneficial owner, and
(iv) an opinion of counsel, which counsel and the form and substance of which
opinion shall be reasonably satisfactory to the Board of Directors of the
Corporation, to the effect that the Certificate of Incorporation, as proposed to
be so amended or supplemented, would not be in conflict with the laws of the
State of Delaware. Within 30 days after such stockholder shall have delivered
the aforesaid items to the Secretary of the Corporation, the Secretary of the
Corporation shall determine whether the items to be ruled upon by them are
reasonably satisfactory and shall notify such stockholder in writing of its
determination. If such stockholder fails to submit a required item in the form
or within the time indicated, or if the Secretary for the Corporation determines
that the items to be ruled upon by it are not reasonably satisfactory, then such
proposal by such stockholder may not be voted upon by the stockholders of the
Corporation at such meeting of stockholders. Nothing in this Section 2.11 shall
be construed to affect the procedures set forth in
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Section 242 of the Delaware General Corporation Law, including, but not limited
to, the requirement that the Board of Directors adopt a stockholder resolution
setting forth the proposed amendment to the Certificate of Incorporation and
declaring its advisability, and arrange for the resolution to be voted on at a
meeting of the stockholders.
Section 2.12 Stockholder Action by Written Consent. Any action which
may be taken by stockholders at an annual or special meeting of stockholders may
be taken by written consent, without a meeting, unless otherwise provided in the
Certificate of Incorporation.
ARTICLE III
DIRECTORS
Section 3.1 Number and Election of Directors. The number of directors
that shall constitute the whole Board of Directors may be increased or decreased
from time to time by resolution adopted by the Board of Directors, provided,
however, no decrease in the number of directors shall have the effect of
shortening the term of any incumbent director. Except as provided in Section 3.2
of this Article III, directors shall be elected by a plurality of the votes cast
at the annual meetings of stockholders and each director so elected shall hold
office until the next annual meeting and until his successor is duly elected and
qualified or until his earlier resignation or removal. Any director may resign
at any time upon notice to the Corporation. A director need not be a
stockholder, a citizen of the United States or a resident of Delaware.
Section 3.2 Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a quorum, or by
a sole remaining director and the directors so chosen shall hold office until
the next annual election and until their successors are duly elected and
qualified or until their earlier resignation or removal. If there are no
directors in office, then an election of directors may be held in the manner
provided by statute.
Section 3.3 Duties and powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise
all such powers of the Corporation and do all such lawful acts and things as are
not by statute or by the Certificate of Incorporation or by these Bylaws
directed or required to be exercised or done by the stockholders.
Section 3.4 Meetings. The Board of Directors may hold meetings, both
regular and special, either within or without the State of Delaware. Regular
meetings of the Board of Directors may be held without notice at such time and
at such place as may from time to time be determined by the Board of Directors.
Special meetings of the Board of Directors may be called by or at the direction
of the Chairman of the Board, if any, the President or a majority of the
directors then in office. Notice thereof stating the place, date and hour of the
meeting shall be given to each director either by facsimile, telephone or
telegram at least 24 hours before the
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meeting. Notice need not be given to any director or to any member of a
committee of directors who submits a written waiver of notice signed by him or
her. Attendance of any such person at a meeting shall constitute a waiver of
notice of such meeting, except when he or she attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the directors need be specified in any written waiver of notice.
Section 3.5 Quorum. Except as may be otherwise specifically provided by
law, the Certificate of Incorporation or these Bylaws, at all meetings of the
Board of Directors a majority of the entire Board of Directors shall constitute
a quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors. If a quorum is not present at a meeting of the Board of
Directors, the directors present may adjourn the meeting from time to time,
without notice other than by an announcement at the meeting, until quorum is
present.
Section 3.6 Action of Board. Unless otherwise provided by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors may be taken without a
meeting, if all the members of the Board of Directors consent thereto in
writing, in one document or in counterparts, and the writing or writings are
filed with the minutes of proceedings of the Board of Directors.
Section 3.7 Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation, members of the Board of Directors
or any committee designated by the Board of Directors may participate in a
meeting of the Board of Directors or such committee by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 3.7 shall constitute presence in person at such
meeting.
Section 3.8 Compensation. The Board of Directors may from time to time
by resolution authorize the payment of fees, the grant of options to acquire
stock in the Corporation or other compensation to the Directors for services as
such to the Corporation including, but not limited to, a fixed sum and expenses
for attendance at each regular or special meeting of the Board of Directors or
any committee thereof; provided that nothing contained herein shall be construed
to preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
Section 3.9 Interested Directors. No contract or transaction between
the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board of Directors or committee
thereof that authorizes that contract or
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transaction, or solely because his, her or their votes are counted for such
purpose if (a) the material facts as to his, her or their relationship or
interest as to the contract or transaction are disclosed or are known the Board
of Directors or committee, and the Board of Directors or committee in good faith
authorizes the contract or transaction by the affirmative note of a majority of
the disinterested directors, even through the disinterested directors be less
than a quorum, (b) the material facts as to his, her or their relationship or
interest as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon and the contract or transaction is
specifically approved in good faith by vote of the stockholders or (c) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meting of the Board of Directors or a
committee that authorizes the contract or transaction.
Section 3.10 Removal. No director of the Corporation shall be removed
as a director by vote or other action of the stockholders or otherwise except
(a) with cause, as defined below, by the affirmative vote of the holders of at
least a majority of the voting power of all outstanding shares of capital stock
of the Corporation entitled to vote in the election of directors, voting
together as a single class, or (b) without cause by (i) the affirmative vote of
at least 80% of all directors then in office at any regular or special meeting
of the Board of Directors called for that purpose or (ii) the affirmative vote
of the holders of at least 80% of the voting power of all outstanding share of
capital stock of the Corporation entitled to vote in the election of directors,
voting together as a single class.
Except as may otherwise be provided by law, cause for removal of a
director shall be deemed to exist only if: (a) the director whose removal is
proposed has been convicted, or where a director is granted immunity to testify
where another has been convicted, of a felony by a court of competent
jurisdiction and such conviction is no longer subject to direct appeal; (b) such
director has been found by the affirmative vote of at least 80% of all directors
then in office at any regular or special meeting of the Board of Directors
called for that purpose or by a court of competent jurisdiction to have been
negligent or guilty of misconduct in the performance of his duties to the
Corporation in a matter of substantial importance to the Corporation; or (c)
such director has been adjudicated by a court of competent jurisdiction to be
mentally incompetent, which mental incompetency directly affects his ability as
a director of the Corporation.
A proposal by a stockholder to remove a director of the Corporation
shall be made in writing pursuant to timely notice delivered to or mailed and
received by the Secretary of the Corporation as set forth in this Section 3.10.
To be timely in connection with an annual meeting of stockholders, a
stockholder's notice and other aforesaid items shall be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
90 nor more than 180 days prior to the date on which the immediately preceding
year's annual meeting of stockholders was held. To be timely in connection with
the removal of any director at a special meeting of the stockholders, a
stockholder's notice and other aforesaid items shall be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
40 days nor
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more than 60 days prior to the date of such meeting; provide, however, that in
the event that less than 50 days' notice of prior public disclosure of the date
of the special meeting of stockholders is given or made to the stockholders, the
stockholder's notice and other aforesaid items to be timely must be so received
not later than the close of business on the seventh day following the day on
which such notice of date of the meeting was mailed or such public disclosure
was made. At such time, such stockholder shall also submit in writing (i) a
statement of the grounds, if any, on which such director is proposed to be
removed, (ii) evidence, reasonably satisfactory to the Secretary of the
Corporation, of such stockholder's status as such and of the number of shares of
each class of the capital stock of the Corporation beneficially owned by such
stockholder, (iii) a list of names and addresses of other beneficial owners of
shares of the capital stock of the Corporation, if nay, with whom such
stockholder is acting in concert, and of the number of shares of each class of
the capital stock of the Corporation beneficially owned by each such beneficial
owner, and (iv) an opinion of counsel, which counsel and the form and substance
of which opinion shall be reasonably satisfactory to the Board of Directors of
the Corporation (excluding the director proposed to be removed), to the effect
that, if adopted at a duly called special or annual meeting of the stockholders
of the Corporation by the required vote as set forth in the first paragraph of
this Section 3.10, such removal would not be in conflict with the laws of the
State of Delaware, the Certificate of Incorporation or these Bylaws. Within 30
days (or such shorter period that may exist prior to the date of the meeting)
after such stockholder shall have delivered the aforesaid items to the Secretary
for the Corporation, the Secretary and the Board of Directors of the Corporation
shall respectively determine whether the items to be ruled upon by them are
reasonably satisfactory and shall notify such stockholder in writing of their
respective determinations. If such stockholder fails to submit a required item
in the form or within the time indicated, or if the Secretary or the Board of
Directors of the Corporation determines that the items to be ruled upon by them
are not reasonably satisfactory, then such proposal by such stockholder may not
be voted upon by the stockholders of the Corporation at such meeting of the
stockholders. The presiding person at each meeting of stockholders shall, if the
facts warrant, determine and declare to the meeting that a proposal to remove a
director of the Corporation was not made in accordance with the procedures
prescribed by these Bylaws, and if he should so determine, he shall so declare
to the meeting and the defective proposal shall be disregarded.
ARTICLE IV
COMMITTEES
Section 4.1 Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
Board may designate one or more directors as alternate embers of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a committee, and in
the absence of a designation by the Board of Directors of an alternate member to
replace the absent or disqualified member, the member or members present at any
meeting and not disqualified
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from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors establishing such committee,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation;
provide, however, no committee shall have the power or authority to amend the
Certificate of Incorporation, adopt an agreement of merger or consolidation,
recommend to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommend to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amend these Bylaws; and, unless the resolution expressly so provides, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Each committee shall keep regular minutes and
report to the Board of Directors when required to do so.
Section 4.2 Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board may make, alter and repeal
rules for the conduct of its business. In the absence of such rules, each
committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article III of these Bylaws.
ARTICLE V
OFFICERS
Section 5.1 General. The Board of Directors, in its discretion, may
elect a Chairman of the Board (who must be a director), President, Secretary,
Treasurer and Controller and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by
the same person, unless otherwise prohibited by law, the Certificate of
Incorporation or these Bylaws. The officers of the Corporation need not be
stockholders of the Corporation or, except in the case of the Chairman of the
Board of Directors, directors of the Corporation.
Section 5.2 Election. The Board of Directors at its first meeting held
after each annual meeting of stockholders hall elect the officer's of the
Corporation, who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
Board of Directors; and all officers of the Corporation shall hold office until
their successors are chosen and qualified or until their earlier resignation or
removal. Any officer elected by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in any office of the Corporation shall be filled by the Board
of Directors. The salaries of all officers of the Corporation shall be fixed by
the Board of Directors and may be altered from time to time except as otherwise
provided by contract.
Section 5.3 Chairman of the Board of Directors. The Chairman of the
Board of Directors shall be the chief executive officer of the Corporation, and,
under the direction and subject to the control of the Board of Directors, the
Chairman of the Board of Directors in general shall
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supervise and control all of the business and affairs of the Corporation and
shall be its chief policy making officer. The Chairman of the Board of Directors
shall preside at all meetings of the stockholders and of the Board of Directors
and shall perform such other duties as the Board of Directors may assign him
from time to time. The Chairman of the Board of Directors shall possess the same
power as the President to sign all contracts, certificates and other instruments
of the Corporation.
Section 5.4 President. The President shall be the chief operating
officer of the Corporation and shall report to the Chairman of the Board of
Directors. The President shall, subject to the powers of the Board of Directors
and the Chairman of the Board of Directors, have general charge of the business,
affairs and property of the Corporation, and control over Directors are carried
into effect. The President may execute and deliver certificates for shares of
the Corporation, any deeds, mortgages, bond, contracts or other instruments that
the Board of Directors has authorized to be executed and delivered, except in
cases where the execution and delivery thereof shall be expressly delegated to
another officer of shall be otherwise required by law to be executed and
delivered by another person. The President shall also perform such other duties
and may exercise such other powers as from time to time may be assigned to him
or her by these Bylaws or by the Board of Directors.
Section 5.5 Vice Presidents. Each Vice President shall perform such
duties and have such other powers as the Board of Directors from time to time
may prescribe. Certain Vice Presidents may form time to time be designated by
the Board of Directors or the Chairman of the Board of Directors as Executive
Vice Presidents or Senior Vice Presidents, which positions shall have such
varying degrees of authority as the Board of Directors shall prescribe.
Section 5.6 Absence of Officers. In the absence or disability of the
Chairman of the Board of Directors, or if there be none, the President shall
preside at all meetings of the stockholders and (if the President is a director)
the Board of Directors. In the absence or disability of both the Chairman of the
Board of Directors and the President, or at the request of the Chairman of the
Board of Directors, the Vice President or the Vice Presidents, if there be more
than one, shall perform the duties of the Chairman of the Board of Directors,
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Chairman of the Board of Directors. If there be no
Chairman of the Board of Directors, President or Vice President, of the Board of
Directors shall designate the officer of the Corporation who shall perform the
duties of the Chairman of the Board of Directors, and when so acting, shall have
all the powers of and be subject to all the restrictions upon the Chairman of
the Board of Directors.
Section 5.7 Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings for the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors or
Chairman of the Board of Directors, under
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whose supervision he or she shall be. If the Secretary shall be unable or shall
refuse to cause to be given notice of all meetings of the stockholders and
special meetings of the Board of Directors, and if there be no Assistant
Secretary, then either the Board of Directors or the Chairman of the Board of
Directors may choose another officer to cause such notice to be given. The
Secretary shall have custody of the seal of the Corporation and the Secretary of
an Assistant Secretary, if there be one, shall have authority to affix the same
to any instrument requiring it and when so affixed, it may be attested by the
signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed
are properly kept or filed, as the case may be.
Section 5.8 Treasurer. The Treasurer shall be the chief financial
officer and shall have the custody of the corporate funds and securities and
shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may be designated by the Board of Directors. The Treasurer shall disburse the
funds of the Corporation as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements, and shall render to the Chairman of the
Board of Directors and the Board of Directors, at its regular meeting, or when
the Board of Directors so requires, an account of all his or her transactions as
Treasurer and of the financial condition of the Corporation. If required by the
Board of Directors, the Treasurer shall give the Corporation a bond in such sum
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his or her office and
for the restoration to the Corporation, in case of his or her death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his or her possession or under his
or her control belonging to the Corporation.
Section 5.9 Controller. The Controller, if there be one, shall have
charge of the Corporation's books of account, records and auditing, and shall be
subject in all matters to the control of the Chairman of the Board of Directors
and the Board of Directors. The Controller shall report to the Treasurer.
Section 5.10 Assistant Secretaries. Except as may be otherwise provided
in these Bylaws, Assistant Secretaries, if there by any, shall perform such
duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any
Vice President, if there be one, or the Secretary, and in the absence of the
Secretary or in the Event of his or her disability or refusal to act, shall
perform the duties of the Secretary, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the Secretary.
Section 5.11 Assistant Treasurers. Assistant Treasurers, if there by
any, shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there be one, or the Treasurer,
and in the absence of the Treasurer or in the event of his or her disability or
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refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the
Treasurer. If required by the Board of Directors, an Assistant Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful performance of
the duties of his or her office and for the restoration to the Corporation, in
case of his or her death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his or her
possession or under his or her control belonging to the Corporation.
Section 5.12 Other Officers. Such other officers as the Board of
Directors may appoint shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and powers.
Section 6.1 Certificates Evidencing Shares. Every holder of stock in
the Corporation shall be entitled to have a certificate signed in the name of
the Corporation (a) by the Chairman or Vice Chairman of the Board of Directors
or the President or a Vice President, and (b) by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by such holder.
Section 6.2 Transfer Agent. The Corporation may appoint a transfer
agent to act on behalf of the Corporation in keeping certain records on each
registered stockholder and to make legal transfers of the Corporation's shares.
Section 6.3 Signatures. Where a certificate is countersigned by (a) a
transfer agent other than the Corporation or its designated employees or (b) a
registrar other than the Corporation or its designated employees, any other
signature on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if he or she were such officer, transfer agent or
registrar at the date of issue.
Section 6.4 Lost Certificates. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his or her legal representative, to advertise the same in such
manner as the Board of Directors shall require and/or to give the Corporation a
bond or other indemnity deemed satisfactory by the Board of Directors in such
sum as it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
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Section 6.5 Transfers. Stock of the Corporation shall be transferable
in the manner prescribed by law and in these Bylaws. Transfers of stock shall be
made on the book of the Corporation only by the person named in the certificate
or by his or her attorney lawfully constituted in writing and upon the surrender
of the certificate therefor, which shall be canceled before a new certificate
shall be issued.
ARTICLE VII
NOTICES
Section 7.1 Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws to be given to any director, member
of a committee or stockholder, such notice may be given by mail, addressed to
such director, member of a committee or stockholder, at his address as it
appears on the records of the Corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Written notice may also be given personally
or by telegram, telecopy, telex or cable and such notice shall be deemed given
at the time when the same is sent.
Section 7.2 Waivers of Notice. Whenever any notice is required by law,
the Certificate of Incorporation or these Bylaws to be given to any director,
member of a committee or stockholder, a written waiver, signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to notice.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 General. The Corporation shall indemnify, and advance
Expenses (as this and all other capitalized words used in this Article VIII and
not previously defined in these Bylaws are defined in Section 8.14 of this
Article VIII) to, each Indemnitee to the fullest extent permitted by applicable
law in effect on the date of the effectiveness of these Bylaws, and to such
greater extent as applicable law may thereafter permit. The rights of an
Indemnitee provided under the preceding sentence shall include, but not be
limited to, the right to be indemnified to the fullest extent permitted by
Section 145(a) of the DGCL in Proceedings by or in the right of the Corporation
and to the fullest extent permitted by Section 145 (a) of the DGCL in all other
Proceedings. The provisions set forth below in this Article VIII are provided in
furtherance, and not by way of limitation, of the obligations expressed in this
Section. 8.1.
Section 8.2 Expenses Related to Proceedings. If an Indemnitee, by
reason of his or her Corporation Status, is a witness in or a party to and is
successful, on the merits or otherwise, in any Proceeding, he or she shall be
indemnified against all Expenses actually and reasonably incurred by him or her
or on his or her behalf in connection therewith. If an Indemnitee is not wholly
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successful in such Proceeding but is successful, on the merits or otherwise, as
to any Matter in such Proceeding, the Corporation shall indemnify such
Indemnitee against all Expenses actually and reasonably incurred by him or her
or on his or her behalf relating to such Matter. The termination of any Matter
in such a Proceeding by dismissal, with or without prejudice, shall be deemed to
be a successful result as to such Matter.
Section 8.3 Advancement of Expenses. And Indemnitee shall be advanced
Expenses within ten days after requesting them to the fullest extent permitted
by ss. 145(e) of the DGCL.
Section 8.4 Request for Indemnification. To obtain indemnification, and
Indemnitee shall submit to the Corporation a written request with such
information as is reasonably available to such Indemnitee. The Secretary of the
Corporation shall promptly advise the Board of Directors of such request.
Section 8.5 Determining Entitlement to Indemnification If No Change of
Control. If a Change of Control has not occurred prior to or at the time the
request for Indemnification is sent, an Indemnitee's entitlement to
indemnification shall be determined in accordance with ss. 145(d) of the DGCL.
If entitlement to indemnification is set to be determined by Independent
Counsel, the Corporation shall furnish notice to the Indemnitee within ten days
after receipt of the request for indemnification, specifying the identity and
address of Independent Counsel. The Corporation a written objection to such
selection. Such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of Independent
Counsel and the objection shall set forth with particularity the factual basis
of such assertion. If there is an objection to the selection of Independent
Counsel, either the Corporation or the Indemnitee may petition the Court of
Chancery of the State of Delaware or any other court of competent jurisdiction
for a determination that the objection is without a reasonable basis and/or for
the appointment of Independent Counsel selected by the court.
Section 8.6 Determining Entitlement to Indemnification If Change of
Control. If a Change of Control has occurred prior to or at the time the request
for indemnification is sent, an Indemnitee's entitlement to indemnification
shall be determined in a written opinion by Independent Counsel selected by such
Indemnitee. The Indemnitee shall give the Corporation written notice advising of
the identity and address of the Independent Counsel so selected. The Corporation
may, within seven days after receipt of such written notice of selection,
deliver to the indemnitee a written objection to such selection. The Indemnitee
may, within five days after the receipt of such objection from the Corporation,
submit the name of another Independent Counsel and the Corporation may, within
seven days after receipt of such written notice of selection, deliver to the
Indemnitee a written objection to such selection. Any objection is subject to
the limitations in Section 8.5 of this Article VIII. The Indemnitee may petition
the Court of Chancery of the State of Delaware or any other court of competent
jurisdiction for a determination that the Corporation's objection to the first
and/or second selection of Independent
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Counsel is without a reasonable basis and/or second selection of Independent
Counsel is without a reasonable basis and/or for the appointment as Independent
Counsel of a person selected by the court.
Section 8.7 Procedures of Independent Counsel. If a Change of Control
has occurred prior to or at the time the request for indemnification is sent by
an Indemnitee, the Indemnitee shall be presumed (except as otherwise expressly
provided in this Article VIII) to be entitled to indemnification upon submission
of a request for indemnification in accordance with Section 8.4 of this Article
VIII, and thereafter the Corporation shall have the burden of proof to overcome
the presumption in reaching a determination contrary to the presumption. The
presumption shall be used by Independent Counsel as a basis for determination of
entitlement to indemnification unless the Corporation provides information
sufficient to overcome such presumption by clear and convincing evidence or the
investigation, review and analysis of Independent Counsel convinces him or her
by clear and convincing evidence that the presumption should not apply.
Except in the event that the determination of entitlement to
indemnification is to be made by Independent counsel, if the person or person
empowered under Section 8.5 or 8.6 of this Article VIII to determine entitlement
to indemnifications shall not have made and furnished to the Indemnitee in
writing a determination within 60 days after receipt by the Corporation of the
request therefor, the requisite determination of entitlement to indemnification
shall be deemed to have been made and the Indemnitee shall be entitled to such
indemnification unless the Indemnitee knowingly misrepresented a material fact
in connection with the request for indemnification. The termination of any
Proceeding or of any Matter therein by Judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Article VIII) of itself
adversely affect the right of the Indemnitee to indemnification or create a
presumption that (a) the Indemnitee did not act in good faith and in a manner
that he or she reasonably believed, in the case of conduct in his or her
official capacity as a director of the Corporation, to be in the best interests
of the Corporation or in all other cases that at least his or her conduct was
not opposed to the Corporation's best interests, or (b) with respect to any
criminal Proceeding, that the Indemnitee had reasonable cause to believe that
his or her conduct was unlawful.
Section 8.8 Expenses of Independent Counsel. The Corporation shall pay
any and all reasonable fees and expenses of Independent Counsel incurred acting
pursuant to this Article VIII and in any proceeding to which it is a party or
witness in respect of its investigation and written report and shall pay all
reasonable fees and expenses incident to the procedures in which such
Independent Counsel was selected or appointed. No Independent Counsel may serve
if a timely objection has been made to his or her selection until a court has
determined that such objection is without a reasonable basis.
Section 8.9 Trial De Novo. In the event that (a) a determination is
made pursuant to Section 8.5 or 8.6 of this Article VIII that an Indemnitee is
not entitled to indemnification under this Article VIII, (b) advancement of
Expenses is not timely made pursuant to Section 8.3 of this
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Article VIII, (c) Independent Counsel has not made and delivered a written
opinion determining the request for Indemnification (i) within 90 days after
being appointed by a court, (ii) within 90 days after objections to his or her
selection have been overruled by a court or (iii) within 90 days after the time
for the Corporation or the Indemnitee to object to his or her selection or (d)
payment of indemnification is not made within five days after a determination of
entitlement to indemnification has been made or deemed to have been made
pursuant to Section 8.5, 8.6 or 8.7 of this Article VIII, the Indemnitee shall
be entitled to an adjudication in any court of competent jurisdiction of his or
her entitlement to such indemnification or advancement of Expenses. In the event
that a determination shall have been made that the Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Section 8.9 shall be conducted in all respects as a de novo trial on the
merits, and the Indemnitee shall not be prejudiced by reason of that adverse
determination. If a Change of Control shall have occurred, in any judicial
proceeding commenced pursuant to this Section 8.9, the Corporation shall have
the burden of providing that the Indemnitee is not entitled to indemnification
or advancement of Expenses, as the case may be. If a determination shall have
been made or deemed to have been made that the Indemnitee is entitled to
indemnification, the Corporation shall be bound by such determination in any
judicial proceeding commenced pursuant to this Section 8.9, or otherwise, unless
the Indemnitee knowingly misrepresented a material fact in connection with the
request for indemnification.
The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 8.9 that the procedures and
presumptions of this Article VIII are not valid, binding and enforceable and
shall stipulate in any such court that the Corporation is bound by all
provisions of this Article VIII. In the event that the Indemnitee, pursuant to
this Section 8.9, seeks a judicial adjudication to enforce his or her rights
under, or to recover damages for breach of, this Article VIII, the Indemnitee
shall be entitled to recover from the Corporation, and shall be indemnified by
the Corporation against, any and all Expenses actually and reasonably incurred
by him or her in such judicial adjudication, but only if he or she prevails
therein. If it shall be determine din such judicial adjudication that the
Indemnitee is entitled to receive part but not all of the indemnification of
advancement of Expenses sought, the Expenses incurred by the Indemnitee in
connection with such judicial adjudication or arbitration shall be appropriately
prorated.
Section 8.10 Non-Exclusivity. This rights of indemnification and to
receive advancement of Expenses as provided by this Article VIII shall not be
deemed exclusive of any other rights to which an Indemnitee may at any time be
entitled under applicable law, the Certificate of Incorporation, these Bylaws,
any agreement, a vote of stockholders, a resolution of the Board of Directors or
otherwise. No amendment, alteration or repeal of this Article VIII or any
provision hereof shall be effective as to any Indemnitee for acts, events and
circumstances that occurred, in whole or in part, before such amendment,
alteration or repeal. The provisions of this Article VIII shall continue as to
an Indemnitee whose Corporate Status has ceased and shall inure to the benefit
of his or her heirs, executors and administrators.
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Section 8.11 Insurance and Subrogation. To the extent the Corporation
maintains an insurance policy of policies providing liability insurance for
directors or officers of the Corporation or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
which such person serves a the request of the Corporation, an Indemnitee shall
be covered by such policy or policies in accordance with its or their terms to
the maximum extent of coverage available for any such director or officer under
such policy or policies.
In the event of any payment hereunder, the Corporation shall be
subrogated to the extent of such payment to all the rights of recover of the
Indemnitee, who shall execute all papers required and take all action necessary
to secure such rights, including execution of such documents as are necessary to
enable the Corporation to bring suit to enforce such rights.
The Corporation shall not be liable under this Article VIII to make any
payment of amounts otherwise indemnifiable hereunder if, and to the extent that,
an Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
Section 8.12 Severability. If any provision or provisions of this
Article VIII shall be held to be invalid, illegal or unenforceable for any
reason whatsoever, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby; and, to the
fullest extent possible, the provisions of this Article VIII shall be construed
so as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
Section 8.13 Certain Persons Not Entitled to Indemnification.
Notwithstanding any other provision of this Article VIII, no person shall be
entitled to indemnification or advancement of Expenses under this Article VIII
with respect to any Proceeding, or any Matter therein, brought or made by such
person against the Corporation.
Section 8.14 Definitions. For Purposes of this Article VIII:
"Change of Control" means a change in control of the Corporation after
the date of adoption of these Bylaws in any one of the following circumstances:
(a) there shall have occurred an event required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item
on any similar schedule of form) promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), whether or not the Corporation is then
subject to such reporting requirement; (b) any "person" (as such term is used in
Section 13(d) and 14(d) of the Exchange Act) shall have become the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Corporation representing 20% or more of the
combined voting power of the Corporation's then outstanding voting securities
without prior approval of at least two-thirds of the members of the Board of
Directors in office immediately prior to such person's attaining such percentage
interest; (c) the Corporation is a party to a merger, consolidation, sale of
assets or other reorganization, or a proxy contest, as a consequence of which
members of the Board of Directors
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in office immediately prior to such transaction or event constitute less than a
majority of the Board of Directors thereafter or (d) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors (including for this purpose any new director whose
election or nomination for election by the Corporation's stockholders was
approved by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of such period) cease for any reason to
constitute at least a majority of the Board of Directors.
"Corporate Status" describes the status of a person who is or was a
director, officer, or employee or agent of the Corporation or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise which such person is or was serving at the request of the
Corporation.
"DGCL" means the Delaware General Corporation Law, as currently in
effect or as amended from time to time.
"Expenses" shall include all reasonable attorneys' fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute of defend, investigation or being or preparing to be a witness in a
Proceeding.
"Indemnitee" includes any person who is, or is threatened to be made, a
witness in or a party to any Proceeding as described in Section 8.1 or 8.2 of
this Article by reason of his or her Corporate Status.
"Independent Counsel" means a law firm, or member of a law firm, that
is experience in matters of Corporation law and neither presently is, nor in the
five years previous to his or her selection or appointment has been, retained to
represent: (a) the Corporation or the Indemnitee in any matter material to
either such party, (b) any other party to the Proceeding giving rise to a claim
for indemnification hereunder or (c) the beneficial owner, directly or
indirectly, or securities of the Corporation representing 5% or more of the
combined voting power of the Corporation's then outstanding voting securities.
"Matter" is a claim, a material issue, or a substantial request for
relief.
"Proceeding" includes any action, suit arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative, except one
initiated by an Indemnitee pursuant to Section 8.9 of this Article VIII to
enforce his or her rights under this Article VIII.
Section 8.15 Notices. Any communication required or permitted to the
Corporation shall be addressed to the Secretary of the Corporation and any such
communication to an Indemnitee
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shall be given in writing by deposition the same in the United States Mail, with
postage thereon prepaid, addressed to the person to whom such notice is directed
at the address of such person on the records of the Corporation, and such notice
shall be deemed given at the time when the same shall be so deposited in the
United States mail.
Section 8.16 Contractual Rights. The right to be indemnified or to the
advancement of reimbursement of Expenses (i) is a contract right based upon good
and valuable consideration, pursuant to which an Indemnitee may sue as if these
provisions were set forth in a separate written contract between him or her and
the Corporation, (ii) is and is intended to be retroactive and shall be
available as to events occurring prior to the adoption of these provisions and
(iii) shall continue after any rescission or restrictive modification of such
provisions as to events occurring prior thereto.
ARTICLE IX
AMENDMENTS
Section 9.1 Vote Requirements. The Board of Directors shall have the
power to alter, amend or repeal these Bylaws or adopt new Bylaws by the
affirmative vote of at least 80% of all directors then in office at any regular
or special meeting of the Board of Directors called for that purpose, subject to
repeal or change by the affirmative vote of the holders of at least 80% of the
voting power of all the shares of the Corporation entitled to vote in the
election of directors, voting together as a single class.
Section 9.2 Stockholder Proposals. No proposal by a stockholder made
pursuant to Section 9.1 of this Article IX may be voted upon at a meeting of
stockholders unless such stockholder shall have delivered or mailed in a timely
manner (as set forth in this Section 9.2) and in writing to the Secretary of the
Corporation (i) notice of such proposal and the text of the proposed alteration,
amendment or repeal, (ii) evidence reasonably satisfactory to the Secretary of
the Corporation, of such stockholder's status as such and of the number of
shares of each class f capital stock of the Corporation of which such
stockholder is the beneficial owner, (iii) a list of the names and addresses of
other beneficial owners of shares of the capital stock of the Corporation, if
any with whom such stockholder is acting in concert, and the number of shares of
each class of capital stock of the Corporation beneficially owned by each such
beneficial owner and (iv) an opinion of counsel, which counsel and the form and
substance of which opinion shall be reasonably satisfactory to the Board of
Directors of the Corporation, to the effect that the Bylaws (if any) resulting
from the adoption of such proposal would not be in conflict with the Certificate
of Incorporation or the laws of the State of Delaware. To be timely in
connection with an annual meeting of stockholders, a stockholder's notice and
other aforesaid items shall be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 90 nor more than
180 days prior to the date on which the immediately preceding year's annual
meeting of stockholders was held. To be timely in connection with the voting on
any such proposal at a special meeting of the stockholders, a stockholder's
notice and other aforesaid
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items shall be delivered to or mailed and received at the principal executive
offices of the Corporation not less than 40 days nor more than 60 days prior to
the date of such meeting; provided, however, that in the event that less than 50
days' notice or prior public disclosure of the date of the special meeting of
the stockholders is given or made to the stockholders, such stockholder's notice
and other aforesaid items to be timely must be so received not later than the
close of business on the seventh day following the day on which such notice of
date of the meeting was mailed or such public disclosure was made. Within 30
days (or such shorter period that may exist prior to the date of the meeting)
after such stockholder shall have submitted the aforesaid items, the Secretary
and the Board of Directors of the Corporation shall respectively determine
whether the items to be ruled upon by them are reasonably satisfactory and shall
notify such stockholder in writing of their respective determinations. If such
stockholder fails to submit a required item in the form or within the time
indicated, or if the Secretary or the Board of Directors of the Corporation
determines that the items to be ruled upon by them are reasonably satisfactory,
then such proposal by such stockholder may not be voted upon by the stockholders
of the Corporation at such meting of stockholders. The presiding person at each
meeting of stockholders shall, if the facts warrant, determine and declare to
the meeting that a proposal made pursuant to Section 9.1 of this Article IX was
not made in accordance with the procedure prescribed by these Bylaws, and if he
should so determine, he shall so declare to the meeting and the defective
proposal shall be disregarded.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, and may be paid in cash, in property or in shares of the capital stock.
Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve or
reserves to meet contingencies, or for any proper purpose, and the Board of
Directors may modify or abolish any such reserve.
Section 10.2 Disbursements. All checks or demands for money and notes
of the Corporation shall be signed by such officer or officers of such other
person or persons as the Board of Directors may from time to time designate.
Section 10.3 Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 10.4 Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal Delaware." The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced.
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Section 10.5 Definition of Beneficial Owner. "Beneficial owner" as used
in these Bylaws means one of the following:
1. a person who individually or with any of his affiliates or
associates beneficially owns (within the meaning or Rule
13d-3 under the Securities Exchange Act of 1934, as amended)
any capital stock of the Company, directly or indirectly.
2. a person who individually or with any of his affiliates or
associates has either of the following rights:
a. to acquire capital stock of the Corporation, whether
such right is exercisable immediately or only after
the passage of time, pursuant to any agreement,
arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or
options, or otherwise;
b. to vote capital stock of the Corporation pursuant to
any agreement, arrangement or understanding; or
3. a person who has any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting or disposing
capital stock of the Company with any other person who
beneficially owns or whose affiliates beneficially own (within
the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended), directly or indirectly, such shares of
capital stock.
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